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Haslam Names Goldin to Court of Appeals, Western Section

Press release from the Office of Tennessee Gov. Bill Haslam; August 27, 2013:

NASHVILLE – Tennessee Gov. Bill Haslam has appointed Chancellor Arnold B. Goldin to the Tennessee Court of Appeals, Western Section. Goldin will replace Judge Alan E. Highers, who will retire at the conclusion of his current term.

“Chancellor Goldin has done an outstanding job and will be an excellent judge on the Court of Appeals in the Western Section,” Haslam said. “His experience on the bench and in private practice will serve the people of West Tennessee well.”

Goldin, 64, has been chancellor in the Shelby County Chancery Court since October 2002, when he was appointed by Gov. Don Sundquist. He was elected in August 2004 to fill an unexpired term and reelected in August of 2006 for a full eight-year term. Prior to his judicial appointment, Goldin was in private practice since 1974, concentrating on civil litigation in state and federal courts.

“I am deeply honored by the governor’s confidence in me,” Goldin said. “I look forward to the opportunity to serve the citizens of Tennessee on the Court of Appeals for the Western Section. I would also like to thank my family and friends for all of their prayers and support during this process.”

Goldin was chair of the Civil Justice Reform Act Advisory Group in United States District Court, Western District of Tennessee from 1995-1999. He was a member of the Tennessee Supreme Court Commission on Dispute Resolution from 1992-1995 and a charter member of the Tennessee Bar Foundation IOLTA Grant Review Committee from 1987-1989. He was a member of the Governor’s Commission on Tort Reform from 1986-1987.

Goldin was recipient of the 2004 Chancellor Charles A. Rond “Judge of the Year Award” presented by the Young Lawyers Division of the Memphis Bar Association.

Goldin received his juris doctorate from Memphis State University, now known as the University of Memphis, in 1974. He received a bachelor’s degree from the University of Virginia in 1971.

He and his wife, Shara Lynn, live in Memphis and have a son, Joshua, a daughter, Rebecca, and four grandchildren.

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McBrayer Named to TN Court of Appeals

Press release from the Office of Tennessee Gov. Bill Haslam; August 25, 2013:

NASHVILLE – Tennessee Gov. Bill Haslam today appointed W. Neal McBrayer as a judge for the Tennessee Court of Appeals, Middle Section.

McBrayer will replace Presiding Judge Patricia J. Cottrell, who will not serve an additional term of office.

“Neal McBrayer has a strong background as an attorney, and I am pleased to make this appointment,” Haslam said. “We are fortunate to have someone on the bench with his experience and expertise.”

McBrayer, 50, is an attorney at Butler, Snow, O’Mara, Stevens & Cannada, PLLC in its Nashville office, concentrating on areas of commercial litigation and bankruptcy law. He was previously at Miller & Martin from 1999-2012 and at Trabue, Sturdivant & DeWitt from 1989-1998.

“I am honored by the governor’s selection and look forward to serving the people of the Middle Section on the Court of Appeals,” McBrayer said. “I will do my utmost to uphold the trust that the governor has placed in me.”

McBrayer received his juris doctorate from the College of William & Mary in Virginia in 1989 where he was an editor of the William & Mary Law Review. He received a bachelor’s degree, graduating magna cum laude, from Maryville College in 1986.

Since 2001, McBrayer has served as a Twentieth Judicial Circuit Delegate to the Tennessee Bar Association House of Delegates. He is a fellow of the Nashville Bar Foundation and has been recognized in “The Best Lawyers in America” and as a Mid-South Super Lawyer. McBrayer is past president of the Mid-South Commercial Law Institute.

He has been a member of the City of Brentwood Planning Commission, first appointed in March 2009, and he serves on the city’s Environmental Advisory Board.

McBrayer and his wife, Kelly, live in Brentwood.

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Corrections Corp. of America Loses Another TN Court of Appeals Ruling

Press release from the Human Rights Defense Center; March 2, 2013:

Nashville, TN – On February 28, the Tennessee Court of Appeals issued its second ruling in a long-running lawsuit filed under the state’s Public Records Act against Corrections Corp. of America (CCA), the nation’s largest for-profit private prison company. The Court of Appeals affirmed the ruling of the lower court, holding that CCA must produce documents that it had refused to disclose, as well as pay attorney fees and costs in the case.

The suit was filed by Alex Friedmann, managing editor of Prison Legal News (PLN), a nonprofit monthly publication that reports on criminal justice-related issues. In 2007, CCA denied Friedmann’s request for records related to litigation filed against CCA and for reports or audits that found contract violations by the company, among other documents. The Chancery Court ruled in Friedmann’s favor, finding that CCA was the functional equivalent of a government agency, and ordered CCA to produce the requested records.

CCA appealed and the Court of Appeals affirmed in September 2009, noting, “With all due respect to CCA, this Court is at a loss as to how operating a prison could be considered anything less than a governmental function.”

Following remand, CCA produced a number of the requested records, including hundreds of pages from reports and audits in which CCA had been found in violation of or non-compliance with its contractual obligations to operate prisons and jails in Tennessee. However, CCA refused to produce copies of settlement agreements, verdicts or releases in cases where the company had paid damages or other monetary amounts to resolve lawsuits or claims. CCA also refused to release database printouts listing such settlements.

On December 1, 2011, Chancellor Claudia Bonnyman ruled against CCA, holding that as the functional equivalent of a government agency it could not keep secret its settlement documents, nor its database printouts listing settlements involving the company. The court ordered CCA to pay $28,367.50 in Friedmann’s attorney fees, and the company again appealed.

“CCA has fought tooth-and-nail against disclosing these records for more than four years,” Friedmann said at the time. “This would not have occurred with a government agency, and evidences a significant problem with prison privatization: private prison companies like CCA prefer to operate in secret, with little transparency, and are not accountable to the public.”

On February 28, 2013, the Court of Appeals again ruled against CCA in the company’s second appeal. The appellate court wrote that it “respectfully disagree[d] with CCA’s conclusion” that the company did not have to produce its settlement-related records because such records were not part of its official business related to running prisons and jails. According to the appellate court, “settlement agreements are considered public records under the Public Records Act. Thus, as the functional equivalent of a government agency, CCA was required to turn over settlement agreements related to the operation of the correctional facilities unless otherwise provided by state law.” The Court noted that “the vast majority of case law clearly flies in the face of [CCA’s] interpretation.”

Further, the Court of Appeals affirmed the lower court’s award of $28,367.50 in attorney fees against CCA, finding that Chancellor Bonnyman had properly found that “CCA acted in bad faith in its refusal to disclose the settlement agreements.” The appellate court also ordered CCA to pay Friedmann’s attorney fees incurred in the appeal, and assessed costs against the company. The case was remanded for determination of the total amount of fees that CCA must pay. CCA was represented by Joseph F. Welborn III and Jason W. Callen.

“Perhaps now, after almost five years of litigation, CCA will finally produce the records it should have produced all along pursuant to the state’s public records law,” Friedmann stated. “CCA officials apparently think they are above the law even though their company performs the governmental function of running prisons and jails, and is paid with public taxpayer funds. CCA is one of the least transparent companies when it comes to public accountability, which is very disturbing given that it incarcerates people for the purpose of generating profit.”

The case is Friedmann v. CCA, Court of Appeals of Tennessee at Nashville, No. M2012-00212- COA-R3-CV. Friedmann was represented on appeal by Memphis attorney Andrew Clarke.

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Featured Liberty and Justice Transparency and Elections

Plan to Constitutionally Formalize TN’s Judicial Selection Practice Met with Early Skepticism

Tennessee’s most powerful elected leaders want to amend the state Constitution to validate the current and, to some at least, controversial method of appointing high-level state judges.

But some majority-party legislators aren’t so sure that’s a good idea — or that it’ll fly with voters.

Flanked by House Speaker Beth Harwell and Lt. Gov. Ron Ramsey, Gov. Bill Haslam announced Wednesday he’ll press lawmakers to pass a resolution asking voters to approve language to the state Constitution enshrining Tennessee’s present selection practice for judges on the Tennessee Supreme Court, Court of Appeals and Court of Criminal Appeals.

“I believe the current process has worked well during my time in office, and I’ve been pleased with both the quality of candidates and the process for choosing them,” said Tennessee’s Republican governor. “The judiciary is the third and equal branch of government, and we are here to make this recommendation because we believe it is important for our Constitution to clearly reflect the reality of how we select judges in Tennessee.”

If the measure is approved this year — and again in the next legislative session by a two-thirds majority vote in both the House and the Senate — voters would see the constitutional-amendment question on the 2014 general election ballot.

Currently, judges are appointed by the governor, whose choices for the bench are limited to a slate of candidates provided by a selection commission. Those judges, who serve eight-year terms, are subject to yes/no “retention” elections as their first term expires.

But even though that system has been formally ruled constitutional, and is strongly supported among the state’s legal establishment, many lawmakers have trouble getting over the nagging feeling that it really doesn’t gel with the clear wording of the Tennessee Constitution, which states, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” The state government’s foundational document also declares, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

“Our current method of choosing judges is a very good system, but it is not constitutional,” Ramsey said Wednesday.

Speaker Harwell said she, too, supports the so-called “Tennessee Plan,” but has “serious concerns about the constitutionality of the plan at present.”

“I also respect the previous decisions of the courts, which have determined otherwise,” added Harwell, a Nashville Republican. “As the governor stated today, clarity is certainly needed.”

Rep. Glen Casada, a Republican from Franklin and a leading proponent in the Legislature of voters choosing who sits on the Supreme Court and appellate courts, was among lawmakers to express reservations Wednesday about what Haslam and the two speakers are proposing.

Casada said it seems to him elementary and unambiguous that the Constitution requires competitive judicial elections, and not merely an up-or-down vote on a judge well after he or she has been deciding cases.

Casada said he’ll be pushing a direct-election bill for judges this session. He said he’s not opposed to the idea of Tennessee voters getting their say on the current plan in the 2014 election, as proposed by Haslam, Harwell and Ramsey, but believes the electorate ought first to get an opportunity to see what a statewide judicial election would look like.

“We need to go ahead and put it into the code that the judges are elected by the people in a contested election, like the Constitution currently says they should be,” said Casada, who chairs the House Health and Human Resources Committee. If Tennesseans don’t like what they see after that, then they could adopt the plan proposed by Harwell, Ramsey and Haslam, he said.

Vance Dennis, a Republican who serves as secretary of the House Judiciary Committee, said he’s skeptical at this time that the proposal to amend the Constitution will win the two-thirds legislative majorities necessary to ever even get on the ballot.

Dennis, an attorney from Savannah, isn’t a supporter of direct judicial elections. But he said it is clear the system used now is constitutionally suspect in the minds of many.

“Legally, the current plan has been found to be constitutional by the Supreme Court. Lots of folks disagree with that; lots of folks believe that the way that was done was not entirely appropriate,” said Dennis. “It is the law of the land, so what we are doing is legal. But it really doesn’t meet my definition of what an election is.”

Government Operations Committee Chairman Mike Bell, R-Riceville, another supporter of giving voters a greater direct voice in choosing judges, said he harbors “serious doubts” a majority of Tennesseans can be convinced the existing system is the best option available.

Nevertheless, Bell, who has also sponsored a direction-election bill, said he’s willing to stand down and let the governor and speakers pursue their chosen course.

Lt. Gov. Ramsey acknowledged during Wednesday’s press conference that there’s an apparent preference within the GOP “of electing everything, so to speak.” He said, however, that he, Harwell and the governor will embark upon a “sales process” to bring doubtful voters and politicians around.

“To have someone spend multimillion dollars to get elected statewide probably won’t get to where we want to be, anyway,” said Ramsey.

Ramsey said he wants to see “conservative judges who interpret the law and not make the law” assigned to the Supreme Court and appellate courts. So long as Tennessee has “a governor who  appoints people who think that way,” the current system is best for achieving that aim, he said.

Asked to speculate on what would happen if voters ultimately reject the proposed constitutional amendment, Gov. Haslam said he “would still be of the opinion that doing it the way we do now is the best system.”